Division: IN THE SUPREME COURT
Date: 20 NOVEMBER 1964
Before: OLLENNU, ACOLATSE AND SIRIBOE JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. On 13 October 1964, we allowed the appeal in this case and reserved our reasons for so doing; the following are the reasons for our decision.
The appellant was convicted by Apaloo J. (as he then was) at the High Court, Kumasi, for abetting an abortion contrary to sections 20 (1) and 58 of the Criminal Code, 1960,1 and sentenced to a term of ten years’ imprisonment with hard labour. That was the minimum penalty prescribed by section 1 of the Criminal Code (Amendment) (No.3) Act, 19632 The first defendant, a girl under the age of fifteen years, whom the appellant was alleged to have abetted, was charged with the substantive offence of abortion, contrary to section 58 of Act 29, and tried
together with the appellant. She was also convicted. Being precluded, by reason of the age of the girl, from imposing a sentence of imprisonment upon her, the court bound the first defendant over to keep the peace for a period of four years. She has not appealed from her conviction and the said order.
The offence of the abetment of a crime, as defined in section 20 (1) of Act 29, may only be committed if the act or omission of another party which is purposely aided, facilitated, encouraged or promoted itself constitutes a crime. Therefore, if it is shown that the act or omission complained of in that other person does not amount to a crime known to our law, any act of whatever nature which aids, facilitates, encourages or promotes the commission of that other act, is not punishable as a crime. See Okpara v. Commissioner of Police.3 Upon that principle the first issue to be decided in the appeal is whether the charge of abortion preferred against the first defendant was proved. Counsel for the appellant submitted that the prosecution failed to prove it, and that consequently the conviction of the appellant cannot stand.
To be an offence, miscarriage by a pregnant woman must be caused intentionally and unlawfully; miscarriage otherwise procured does not amount to the crime of abortion. In other words, a miscarriage must be intentionally induced by some unlawful means. Therefore, the prosecution cannot succeed on a charge of abortion if they fail to prove beyond a reasonable doubt that the miscarriage, the subject-matter of the charge, was intentionally or purposely induced, and that the inducement was procured without lawful justification. Counsel for the appellant contended that the prosecution failed to discharge that onus.
The issues in the case were simplified to a certain degree by an admission made by the first defendant that she took a drug which she obtained from the appellant, and an admission by the appellant that he did give a certain drug to the first defendant as alleged by her. But while the defence said that the drug given and taken was “super vitamin Avion” tablets, and that it was given and taken with intent to cure the first defendant of a general weakness and sleepiness, and in addition to give her strength, the prosecution on the other hand contended that in all the circumstances of the case the drug taken must have been “Mensicol” which contains abortifacient properties, and must have been taken with intent to cause an abortion, and did in fact cause an abortion.
Since the first defendant was charged with the substantive offence of abortion, and not with an attempt to cause an abortion, it was incumbent upon the learned judge first and foremost to decide whether or not the miscarriage of the first defendant was induced. If he found that the miscarriage was not induced, it would then have been open to him by virtue of section 153 of the Criminal Procedure Code, 1960,4 to consider whether there was evidence to establish an attempt to commit the offence as defined in section 18 of Act 29.
The learned judge failed to direct his attention to this first and most important issue in the case. We therefore examined the evidence led on this issue in order to determine whether, in spite of this glaring misdirection, this was a proper case in which the ends of justice required us to exercise the powers given by section 15 (1) and uphold the conviction, or the powers given in section 16 (2) to substitute verdicts of guilty of attempt and abetting an attempt to commit an abortion for the verdicts found by the learned judge.
Evidence of the nature of the miscarriage was given by the second prosecution witness, a medical practitioner, who treated the first defendant. The relevant parts of his evidence in this regard are as follows. He stated in his evidence-in-chief that:
“On 22 June of this year, I was on duty. While there, a patient was brought to me for treatment. She was bleeding from the vagina. She is the first accused. She was rather weak. I examined her. It was clear it was a case of abortion. I found that the cervix was wide open and from it was protruding the placenta. I performed a form of surgical operation to remove the placenta. Tissue was put in the cervix and this stopped the bleeding. The abortion was incomplete when first accused came. During the treatment, the abortion became complete. I cannot express an opinion what caused this incomplete abortion.”
Secondly, in cross-examination he said, “When pregnancy is interrupted in the first three to four months of pregnancy, we call it an abortion. I agree the interruption can be natural or purposely induced.” And in re-examination he said further, “If the pregnancy is not induced, one can have an incomplete abortion.” Dr. Armar, a gynaecologist, who was the fourth prosecution witness, in answer to the court said, “It cannot be said categorically that the abortion was due to the drug. It cannot also be said categorically that the abortion was not due to the drug.”
That evidence does not satisfy the standard of proof which the law requires in a criminal case to establish that the miscarriage was induced. If the learned judge had addressed himself on that evidence it is inevitable that he would be obliged to hold that the prosecution failed to prove that the miscarriage was induced, and therefore to hold that the charge of causing an abortion was not proved.
On the other issues in the case the learned judge directed himself as follows:
“The prosecution contend that the pills which the first accused took are Mensicol capsules which contain abortifacient properties and that the first accused took in these pills for the purpose of procuring her own abortion and was successful in the result. The accused for their part say that the pills which the first accused took in are what was described as super vitamin tablets. They deny that they were intended to or were capable of causing abortion. They say they were intended to make good the deficiencies which caused general debility and sleepiness from which the first accused suffered and to give her strength and vitality. The accused say that there was no intention to cause abortion and that the baby was in fact welcome. On the issue thus joined, the questions which call for determination are firstly, which of the two pills did the first accused actually take and what was the object for taking it.”
This direction would have been quite proper if this had been a civil case. This being a criminal case the proper direction the learned judge should have given to himself is whether or not the prosecution had proved beyond a reasonable doubt that the drugs taken were Mensicol capsules. It is all the more important that the learned judge should have been more careful on this direction because, as we shall point out presently, the prosecution themselves led evidence, both direct and circumstantial, that the drug taken must have been the super vitamin Avion tablets and no other.
Then, the learned judge continued: “I find that the pills which the first accused took are the Mensicol capsules and I reach that conclusion without the slightest hesitation.” He gave the following reasons for his said conclusion: (1) the third prosecution witness, a detective corporal, had found eighteen Mensicol capsules scattered under a bed which the first defendant and her mother, the first prosecution witness, shared in the mother’s room; (2) the third prosecution witness had put those eighteen capsules in a bottle given to her by the first prosecution witness; (3) the third prosecution witness had shown the bottle and the contents to the first defendant in hospital a day or two after she had been admitted there, and according to him the first defendant had admitted that those were the bottle and tablets she received from
the fifth prosecution witness, a cousin of the appellant; (4) he, the third prosecution witness, had also shown the said bottle to the appellant, and he too had said that it was the bottle he had caused his cousin, the fifth prosecution witness, to give to the first defendant; (5) he, the judge, did not believe the evidence of the fifth prosecution witness that the tablets he gave to the first defendant were super vitamin Avion tablets and not Mensicol, and he did not believe the first defendant or the appellant either on that point; (6) the Mensicol capsules contain abortifacient properties; and (7) he, the judge, regarded as inconclusive the scientific evidence tendered by the prosecution which if accepted leads to the irresistible conclusion that the drug taken is not Mensicol capsules, but must have been super vitamin Avion tablets.
Now with respect to the first question raised on these seven points, should the learned judge have accepted the evidence of the third prosecution witness as to the alleged discovery of the eighteen Mensicol capsules as evidence against either the first defendant or the appellant? The evidence of the third prosecution witness shows that the alleged discovery was made in the absence of both the first defendant and the appellant. The room in which he alleged that he discovered them, belonged to the first prosecution witness, the mother of the first defendant. There was no evidence that anyone was present when the alleged discovery was made, and the owner of the room, the first prosecution witness, was not asked a word about the alleged discovery nor was she asked about the allegation that she was the one who gave the bottle
produced in court to the detective corporal, the third prosecution witness. It is significant, on this issue, to remember that the first prosecution witness in her evidence-in-chief categorically said, “The first accused did not show me the medicine.” In short there was no evidence to connect either the appellant or the first defendant with the Mensicol capsules. Those capsules and the bottle in which they were tendered in court might well have been the property of the first prosecution witness, the owner of the room, who was alleged to have given the bottle to the third prosecution witness.
Again if the evidence of the third prosecution witness with respect to the said capsules is true, it is strange that neither the first defendant nor the appellant mentioned anything about the capsules and the bottle in the cautioned statements they gave to the third prosecution witness, even though from his evidence it would appear that he had shown these articles to them before they made their statements.
Now the scientific evidence tendered by the prosecution may be summarised as follows: If a person took either the Mensicol capsules or the super vitamin Avion tablets, the principal properties thereof will be found in his or her blood upon an examination of his or her blood. But this depends upon the quantity of the drug taken and the time which elapsed between taking it and the examination of the blood. It was at lunch time on 22 June that the first defendant took some of the drug. Then at about 10 p.m. on the same day she discharged a lot of blood from the vagina onto her bed clothes and into a chamber pot. She was admitted into the hospital later that same night at about midnight. Some time thereafter a portion of her blood was taken to the hospital together with the Mensicol capsules and the two were sent from there to the government chemist for analysis. The analysis revealed that the blood did not contain any of the principal properties of the Mensicol capsules, but that it rather contained the principal property of super vitamin Avion tablets, and a small quantity of quinine. As to the quinine there is evidence that the first defendant is an athlete in her school, and that she and all other athletes in the school are given a dose of quinine tablets twice a week.
The learned judge rejected this important scientific evidence on the grounds that it was inconclusive, and explained that as follows:
“In my judgment, it does not follow that because the chemist did not detect these two properties in the blood, the first accused cannot have taken capsules containing these. A consideration of Dr. Armar’s evidence leads me to think that whether these properties can be detected on blood examination or not depends not only upon the quantity taken but also upon the time when the examination was conducted. There is in fact no evidence when the chemist actually made the analytical examination. If she did it about the time she made her report,
namely, 29 July, more than a month had elapsed after this blood was collected.”
It is obvious that in these arguments the learned judge misdirected himself on the evidence of the doctor. The proper interpretation of the doctor’s evidence is that whether or not the properties of a drug taken can be found in a person’s blood upon examination of the blood depends upon the quantity of the drug which is taken and the time which elapses between the taking of the drug and the extraction of the blood specimen for the analytical examination, and not the time which elapses between the taking of the drug and the actual examination.
In any event, even if the learned judge was right in his interpretation of the doctor’s evidence, and if there was doubt as to the date on which the examination of the blood was conducted, then since the blood must, upon the evidence, have been collected on 23 June, our law requires that the doubt which the learned judge entertained be resolved in favour of the defence and not in favour of the prosecution. It is therefore a serious violation of our law for the learned judge to have resolved his doubts in favour of the prosecution.
Again since the only evidence as to the last time the first defendant took any drug was the lunch time before the evening of her discharging the blood which was examined, it is illogical to hold that because the blood might have been examined about a month after its discharge it would contain quinine taken at school in the morning as well as the properties of a drug which might have been taken at some remote date prior to mid-day of 22 June, but will not contain those of the drug taken just a few hours before the discharge of the blood. Therefore the learned judge erred in rejecting the scientific evidence which was one of the most material pieces of evidence tendered by the prosecution. The scientific evidence leads to one and only one conclusion, which is, that the drug which the first defendant took was super Avion tablets.
The final question is: With what intent were the super Avion tablets given and taken? Because even though they do not contain abortifacient properties, and therefore are not likely to procure an abortion, yet if it is proved that they were administered with the intent to cause an abortion, the first defendant could be convicted of the offence of using a means to cause an abortion by virtue of section 59 (1) of Act 29 and the appellant could be convicted of the abetment of that offence.
Intent is a thing which exists in a person’s mind. The proof of it may be given either by direct evidence of what the person himself says as to his purpose for doing a thing, or by inference from the nature and manner of the act he did and section 11 (1), (2) and (3) of Act 29 provide the guide for ascertaining a person’s intention or purpose for doing an act. As to direct evidence of the intent, we have the evidence of two witnesses for the prosecution, namely, the first prosecution witness and the fifth prosecution witness. The relevant portions of the evidence of the first prosecution witness are as follows: “When first accused returned [from urinating] I asked her how she came by the blood. I asked whether she had taken medicine. She said she had. I asked her why she took medicine as she was pregnant. She said she did so as she felt
weak.” Continuing her evidence in-chief on this subject the witness said, “I asked first accused who gave her the medicine. She said second accused did. First accused told me she reported to second accused that she felt weak and sleepy in classes and second accused gave her that medicine to take to prevent this. First accused did not show me the medicine.” The fifth prosecution witness said inter alia,
“First accused came to second accused and told him in my presence that she felt sleepy and wanted him to give her medicine to stop this. Second accused therefore gave her medicine for this purpose. It is super vitamin.”
Then there was the evidence given by the first defendant and the appellant in their defence, which was substantially the same as that given by the first prosecution witness and the fifth prosecution witness.
Against this oral evidence are statements, one allegedly made by the first defendant, not on caution, and another on caution made by the appellant. In the statement of the first defendant she is alleged to have said that the appellant took her to Kumasi to a dispenser for the purpose of terminating the pregnancy, but the dispenser did not have time to attend to them, and that they returned to Konongo later in the evening. Upon being questioned by her mother, the first prosecution witness, as to why she had come home late, she had told her mother all about it, and that the next day the first prosecution witness had gone and questioned the appellant about it. In that statement the first defendant is alleged to have said further that on 14 June, the fifth prosecution witness gave her some tablets as coming from the appellant, and that on
21 June, the appellant himself had given her some more of the same tablets. But there was nothing in the said statement to show that the purpose for which those two sets of tablets were given to her was to cause her to abort. Of course if the allegation as to the journey to Kumasi is true, it would be fair to draw the inference that those tablets were given for the purpose of procuring her miscarriage. It is also fair to observe that if the allegation in that statement with respect to the journey to Kumasi were true, the first prosecution witness would have given some evidence as to her calling upon the appellant and questioning him about it.
Again the alleged statement of the first defendant was taken in the evening of 23 June, in the hospital. According to the third prosecution witness himself, he had been to the hospital earlier that day to take a statement from the first defendant. He said, “I then visited the Agogo hospital. I there met first accused who had already been admitted there. I wanted to interrogate first accused but her condition was serious and as she could not tell me anything I returned to Konongo.” Yet a few hours later the first defendant was alleged to have recovered sufficiently to make a detailed statement. In those circumstances, although the statement was admissible, no weight should have been attached to its contents.
The caution statement of the appellant contains an allegation that the first defendant asked him to give her something to terminate her pregnancy as she wanted to finish her schooling, and she worried him so much that he became confused and gave her the tablets. Standing by itself that statement will appear to warrant the inference that the tablets were given to the first defendant with the intent to cause her to abort. But taken together with other evidence and all the circumstances of the case, it will also be proper to infer from that statement an intention to
relieve the first defendant of the sleepiness and weakness which she was feeling at school, to give her the assurance that in spite of the pregnancy which was then about a month old, she could achieve her desire of completing her course, for after all she was in the top form of the school, and the school’s year which was to end in August, as described in the evidence, had less than two months to run.
When all of these matters are taken together with the medical evidence that the principal properties of super Avion tablets are for re-vitalising a person feeling weak and sleepy, and the evidence that the appellant had himself been using the said tablets for the same purpose, i.e. for re-vitalising and building his strength, the inference to be drawn as the most probable intent with which the appellant gave the tablets to the first defendant, and with which the first defendant took those tablets, is the intent to make good deficiencies which caused the first defendant’s general debility and sleepiness from which she suffered, and to give her strength and vitality.
Therefore the question of the attempt to cause an abortion or of the offence of using means to cause an abortion does not arise either. The court, therefore, being satisfied that the decisions of the trial judge on the questions of law raised are wrong, that the trial judge misdirected himself on the essential facts, and consequently that his judgment has occasioned a miscarriage of justice, has to allow the appeal, by virtue of section 15 (1) and (2) of the Courts Act, 19605 quash the conviction of and sentence passed upon the appellant, and direct that a judgment verdict of acquittal be entered.
Counsel for the appellant and the senior state attorney were a great assistance to the court. Each of them made his points clearly and concisely supported by law or facts, and conceding nothing except that which upon law or fact, is indefensible. After we had made the order quashing the conviction of the appellant and directed a judgment and verdict of acquittal to be entered, learned senior state attorney reminded us of the first defendant who had not appealed, and requested us, in view of our decision to consider her position. This conduct of the learned senior state attorney is in accord with the highest tradition of our honourable profession and is highly commendable.
Now an appeal vests the court with jurisdiction over the whole of the proceedings from the court below. That is so even if only one of two or more persons convicted together appealed, and the other failed to appeal. As a general rule, the court, in dealing with an appeal in a case where two or more persons have been convicted together, is bound to deal with the cases of the convicted persons separately, each on its own merit, so that if only one of the convicted persons appealed and another or others failed to appeal the court has to deal only with the issues in the appeal which affect the appellant or appellants before it and with no other; so that while the appeal of one or more appellants may succeed, that of another or other appellants may fail, and also the conviction of the convicted person or persons who have not appealed will not be affected in any way. But where the court is satisfied upon the appeal of one or more of a number of persons convicted that the whole of the proceedings is null and void, and so annuls the proceedings, that decision and any order made consequent thereon, e.g. an order under section 16 (5) of the Courts Act, 1960, in law affects the conviction even of the persons who
did not appeal. Again if the cases of the convicted persons are inseparable, or if the case of the person or persons who appealed is so interlocked with that of a person who has not appealed as to be incapable of separate considerations, a decision on the case of the one who appealed necessarily operates as a decision on the merits of the case of the convicted person or persons who did not appeal; in such a case the success of the appeal and the quashing of the conviction of the appellant or appellants necessitates the quashing of the conviction even of those who have not appealed. For example, where three persons were charged under section 202 of Act 29 with the offence of holding an unlawful assembly and convicted, and two of them appealed, but one failed to appeal, if the appeal of one of the appellants is allowed, the appeal of the other appellant must automatically be allowed, and the conviction of the non-appellant must also be quashed, otherwise his conviction will make nonsense of the law, because to leave his conviction to stand would mean that he alone constituted an unlawful assembly, when under section 201 of Act 29, an unlawful assembly cannot be constituted by less than three persons. Or again, where two persons are convicted together, one of a substantive offence and the other of abetting the former to commit that substantive offence, and the one convicted of the substantive offence appealed but the one convicted of abetting did not appeal, the success of the appeal against the conviction on the substantive offence, being a decision that no offence has been committed, would also mean that no crime has been abetted; consequently it will be nonsensical to leave the conviction of the offence of abetting to stand. In such a case too, justice requires that the court should quash the conviction on abetting even though there is no appeal against it.
In the present appeal, the court dealt with the issue of abortion on the merits and allowed the appeal against the conviction on abetment of abortion and quashed it because in the judgment of the court the offence of abortion was not proved. Having so decided the issue of abortion in favour of the first defendant, the fact that she has not appealed became a mere technicality. In these peculiar circumstances, justice makes it incumbent upon the court to give practical effect to the judgment on the point of law which it has already given in favour of the first defendant, a non-appellant, and make the consequential order.
For these reasons, the conviction of the first defendant and the order binding her over are also quashed, and a judgment and verdict of acquittal entered in her favour.
DECISION
Appeal allowed.
Conviction quashed.
T. G. K.
